State v. Keller

• Decision Date: 23 November 1938
• Docket Number: 289.
• Citation: 199 S.E. 620,214 N.C. 447
• Parties: STATE v. KELLER et al.
• Court: North Carolina Supreme Court

199 S.E. 620

214 N.C. 447

STATE v. KELLER et al.

No. 289.

Supreme Court of North Carolina

November 23, 1938

Appeal from Superior Court, Caldwell County; Hubert E. Olive Special Judge.

Victor Keller, Jess Keller, Lizzie Keller, Janie Cline, and Charlie Coffey were convicted of robbery with firearms, and they appeal.

New trial ordered.

Where the meaning of a statute is in doubt, reference may be had to the title and context as legislative declarations of the purpose.

The defendants pleaded not guilty.

The prosecuting witness, Montreal Beach, 80 years of age testified that on January 30, 1938, the defendant Victor Keller and one Roy Andrews came into his house late at night that Keller took him by one arm and said that he had a pistol and would kill him unless he turned over his money. Beach further testified: "I was standing by the little table drawer when they took the $20 * * * He put something against the side of my head, which he said was a pistol and knocked me two or three times with his fist * * * I didn't see a pistol. He hit my head and said it was a pistol".

The State's witness, Roy Andrews, who with his wife pleaded guilty, turned State's evidence and implicated other defendants in the alleged robbery, testified that Victor Keller knocked Beach far enough to open the door, and argued with him but did not have any gun. "He just stuck his finger up to his head".

Verdict: Guilty as to Victor Keller, Jess Keller, Lizzie Keller, Janie Cline and Charlie Coffey-Not guilty as to Summerlin.

Judgment: Imprisonment in the State Prison at Raleigh at hard labor for terms as follows: As to Victor Keller, of not less than seven nor more than nine years; as to Jess Keller and Charlie Coffey, each, of not less than six nor more than eight years; and as to Lizzie Keller and Janie Cline, each, of not less than five nor more than seven years.

These defendants appeal to Supreme Court, and assign error.

Hunter Martin, of Lenoir, for Victor Keller.

Hal B. Adams, of Lenoir, for other appellants.

Harry M. McMullan, Atty. Gen., T. W. Bruton and R. H. Wettach, Asst. Attys. Gen., for the State.

WINBORNE Justice.

Defendants' exceptive assignment is well taken to the refusal of the court below to give in form or in substance this request for instruction: "Before the defendants, or either of them, be found guilty of larceny by the threat of using firearms or other weapons, it would be necessary for it to be found that not only was there a threat of the use of a pistol or weapon of some sort but that actually such pistol or other weapon was at the time in the possession of the defendants or one of them at the time of the threat being made, or at the time the alleged assault and larceny was being consummated".

Defendants are indicted under Chapter 187 of P.L.1929, entitled "An Act Making Robbery with Firearms or Other Dangerous Weapons Implements or Means Whereby the Life of a Person is Endangered or Threatened, a Felony". Sec. 1 (Code 1935, § 4267(a), in part, reads: "Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another * * *, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony...